Friday, May 29, 2009

Al-Haramain v. Obama: Trying to Restore the Rule of Law

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Several civil suits involving extraordinary rendition, torture, detention without charges, and warrantless surveillance are now making their way through Bay Area federal courts. Tea leaf readers of President Obama are carefully watching these cases, as the president navigates the legal land mines laid down by the Bush administration – and, so far, there have been few reasons for civil libertarians to feel the euphoria that they may have felt during the January 20 inaugural ceremonies, when Obama was hopefully ending eight years of Orwellian rule and restoring the nation to transparency and the rule of law.

In all the cases – Mohamed V. Jeppesen Dataplan, Inc., Al-Haramain v. Obama (sometimes referred to as v. Bush), Padilla v. Yoo, Hepting v. AT&T, and Jewel v. the National Security Agency –plaintiffs initiated their suits during the Bush administration. Under Bush, United States Department of Justice lawyers fought the cases on the basis of national security, denying the right of the plaintiffs to litigate based on the “state secrets” privilege. Lawyers in the Bush Justice Department were never able to kill any of the cases; yet lawyers for Obama Justice Department have continued to deny the right of the plaintiffs to sue, asserting, at a minimum, the same “state secrets” argument, and at worst, a new argument, “sovereign immunity.”

In this piece, I address Al-Haramain v. Obama.

Al-Haramain v. Obama: Warrantless Surveillance

In the Al-Haramain case, Wendell Belew and Asim Ghafoor – two lawyers for an Oregon branch of the Islamic foundation, which was suspected of having ties to terrorists – sued the Bush administration in February 2006 on the basis that the National Security Agency had spied on them and the foundation without warrants in March and April 2004, in violation of the 1978 Foreign Intelligence Surveillance Act (FISA). The lawyers and a third individual associated with the foundation (now defunct) learned that the government had been eavesdropping on their communications when the US Treasury Department, which was investigating its possible financial support of terrorist organizations, accidentally delivered a top-secret document to them in August 2004 that revealed the warrantless spying.

Based on the evidence revealed in the documents, Belew and Ghafoor got lawyers and sued. The case has been bouncing around to different courts, with Justice Department lawyers arguing consistently, under both Bush and Obama, according to San Francisco Chronicle reporter Bob Egelko in a May 22 story,

"… that courts have no power to decide the legality of the surveillance program unless the government acknowledges that it monitored a particular person or group. It has not done so in Al-Haramain's case."

Say what?

Truth Will Out

At this point, a lesson in early American/British law is in order. John Peter Zenger was put on trial in 1735 for publishing “false news and seditious libels.” Zenger was a New York printer, and among the works he printed was the first opposition paper in American history, including truthful satire that was not favorable to the governor of New York province at the time.

Prior to Zenger’s case, according to English barrister William Blackstone, writing several decades after the trial, “The provocation, and not the falsity, is the thing to be punished criminally.” However, Zenger’s lawyer, Andrew Hamilton, appealed to the jury on the basis of the fact that the information that Zenger had published was true and well known to be true.

“… Gentlemen of the Jury,” spoke Hamilton, “It is to you we must now appeal, for Witnesses, to the Truth of the Facts we have offered, and are denied the Liberty to prove … according to my Brief, the Facts which we are to prove were not committed in a Corner; they are notoriously known to be true; and therefore in your Justice lies our Safety.”

The jury acquitted Zenger (in fact, some historians say the jury practiced nullification), and while the acquittal was not a renunciation of the law, it set the stage for a remarkably free press – and the importance of the truth in settling cases.

Does ‘truth’ in the form of evidence play a role in Al-Haramain v. Obama?

The New York Times broke the story of warrantless wiretapping in a 2005, and George W. Bush and others have, perhaps foolishly, admitted to the practice, using the argument that the resolution passed by Congress on September 18, 2001 gave the president essentially a blank check to do whatever he needed to do to protect the country. So, like the facts in the case of John Peter Zenger, warrantless wiretapping is “notoriously known to be true.”

Nonetheless, the Justice Department has refused to give up the battle, despite that fact that it has not always been faring well in court.

For example, when the case landed in the courtroom of Judge Vaughn R. Walker of the US District Court for the Northern District of California in July 2008, Walker ruled that FISA preempts the state secrets privilege. The case could thus go forward. (In fact, counsel for the plaintiffs, Jon B. Eisenberg, in one of a series of commentaries he has written for Salon.com, said that Walker’s ruling essentially makes a felon out of George W. Bush.)

Judge Walker also ruled at one point that the case could proceed without the documents in question as evidence -- which the Justice Department has called “top secret” -- as the plaintiffs had gathered enough other evidence for the case to proceed. But more recently, Judge Walker has ruled that the plaintiffs could use a copy of the document that was originally sent to them, which the plaintiffs’ lawyers destroyed long ago out of fear of prosecution. But now …U.S. Department of Justice lawyers fight back

Justice Department lawyers are fighting back and refusing to cooperate with Judge Walker’s order to let the lawyers examine the document that they have already seen.

In early March, Eisenberg documented his troubles with the Obama Justice Department for Salon.com, in which Obama’s lawyers appear to be challenging Walker’s orders in ways that seem headed for a showdown between the executive and judicial branches of the government.

On May 22, a frustrated Judge Walker ordered the Justice Department to tell him by Friday, May 29, just exactly why he should not rule that the plaintiffs have won their case by default.

As I sit at my computer now, on May 29, I await the response from the Justice Department and peruse Eisenberg’s memorandum that Judge Walker also ordered him to produce.

According to Eisenberg’s memorandum, the plaintiffs do not desire a summary judgment in their favor today or anytime soon. They'll settle for a summary judgment, but what they really want is their day in court – with or without the sealed document as evidence – and they want to challenge the government’s argument that the Authorization for Use of Military Force Against Terrorists, passed by Congress on September 18, 2001, gave the government a blank check to violate FISA and engage in warrantless wiretapping.

A hearing is scheduled in Judge Walker’s courtroom for Wednesday, June 3, at 2 pm.